certainly does not project itself as the one and only legal portal to the recognition of same-sex unions.
[109]Thus section 15(3) is indicative of constitutional sensitivity in favour of acknowledging diversity in matters of marriage. It does not, however, in itself provide a gateway, let alone a compulsory path, to enable same-sex couples to enjoy the status, entitlements and responsibilities which marriage accords to heterosexual couples. At most, for present purposes, section 15(3) offers constitutional guidance of a philosophical kind pointing in the direction of acknowledging a degree of autonomy for different systems of family law. Yet while it reinforces a general constitutional propensity to favour diversity, it does not in itself provide the remedy claimed for it by the state and the amici, let alone constitute a bar to the claims of the applicants.
Justification
[110]Having accepted that the need to accord an appropriate degree of respect to traditional concepts of marriage does not as a matter of law constitute a bar to vindicating the constitutional rights of same-sex couples, a further question arises: has justification in terms of section 36 of the Constitution been shown to exist for the violation of the equality and dignity rights of these couples?[1] The state made the
- ↑ Section 36 of the Constitution states:
“(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation;
